Standing Committee D

[Mr. Edward O'Hara in the Chair]

Extradition Bill

Clause 68 - Extradition to category 2 territories

Question proposed, That the clause stand part of the Bill.

Nick Hawkins: I need not detain the Committee long, but I want to make some brief opening remarks about part 2 as we start to debate it. My right hon. Friend the Member for West Dorset (Mr. Letwin), the shadow Home Secretary, made it clear on Second Reading on 9 December that we do not have anything like as many objections to part 2 as we had to part 1. However, we continue to have objections, as demonstrated amply by the various votes throughout the first four Committee sittings, not least those before the luncheon adjournment this morning. Those Divisions showed our objections to part 1.
 We want to analyse some detailed points in part 2 although, as on 9 December my right hon. Friend the Member for West Dorset said, 
''Parts 2, 3 and 5 will, no doubt, repay attention in Committee, but do not involve vast matters of principle.''—[Official Report, 9 December 2002; Vol. 396, c. 52.]
 I simply want to take the opportunity of once again urging the Government to reconsider whether we need the part 1 provisions except for terrorist offences and whether part 2 would be a much wiser way of proceeding for all others. I realise that the Government have got themselves into a difficulty by signing up to the framework directive, arguably without having the required authority to do so, as I stressed in referring to the distinguished opinion of Leo Price QC about whether the Government were acting intra vires when they signed up. We will undoubtedly deal with that on Report and in another place. 
 I remind the Minister about a point made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) on 9 December. He intervened on my right hon. Friend the Member for West Dorset to say: 
''Is it not extraordinary that the part 1 procedure would apply to Greece yet the part 2 procedure would apply to Australia? Surely most people in this country would think that if the Government had such absolute confidence as to use the part 1 procedure, they would use it in respect of the courts of Australia and not in respect of the courts of Greece.''—[Official Report, 9 December 2002; Vol. 396, c. 58.]
 In the light of the experience of the British plane-spotters, I can say only ''Hear, hear''. I wanted to put that point on the record again. We believe that the part 2 powers would have been sufficient, and the only justification that we could find for the extraordinary 
 extension in part 1 was in relation to the extraordinary crime of terrorism.

Bob Ainsworth: Considering those comments, I wonder why the previous Government removed the requirement for prima facie evidence in the case of extradition to Greece and yet kept it for Australia. That is strange considering those comments.
 Question put and agreed to. 
 Clause 68 ordered to stand part of the Bill. 
 Clause 69 ordered to stand part of the Bill.

Clause 70 - Arrest warrant following extradition request

Nick Hawkins: I beg to move amendment No. 154, in
clause 70, page 35, line 33, leave out subsection (4).
 We are once again putting forward the views of the Law Society of England and Wales. We share its view that there is no justification in the Bill for two different part 2 proceedings for what the Law Society calls category or part 2 countries. The clause provides that an Order in Council could in future designate the part 2 categories into sub-tiers: one that would require information; the other, evidence to support the warrant. The Opposition have not seen anything that justifies a requirement for a lesser degree of evidence for any part 2 state. 
 Issues relating to the Human Rights Act 1998 and procedural safeguards will not be so effectively monitored and enforced in part 2 proceedings. In the absence of such enforcement mechanisms, the Law Society of England and Wales says that there should be a requirement for prima facie evidence, which will provide protections against foreign states embarking on what the courts refer to as fishing expeditions. In my years in practice at the Bar, I worked on various cases that involved reducing the opportunities for parties to go on such fishing expeditions. I am sure that the hon. Member for Orkney and Shetland (Mr. Carmichael) will know from his experience north of the border—he is nodding—that the courts there are keen to avoid such fishing for evidence. 
 A requirement for prima facie evidence would avoid potential uses of the procedures for merely incompetent or mistaken investigations. Again, I am indebted to Mr. Roscoe of Victor Lissack and Roscoe Solicitors. As a specialist in the field, he drew my attention to several cases in which entirely trivial accusations appear to have been made against people in this country. One case was dropped in a matter of days after someone had been extradited. In the meantime, however, a huge amount of taxpayers' money had been wasted on extradition proceedings. 
 In another case, the Czech authorities sought to extradite a Mr. Sivak. I make no general criticism of those authorities, but I understand from Mr. Roscoe, who drew the case to my attention, that the Czech Republic—an applicant state to the EU—was pursuing investigations that it should not have been pursuing. The Czech Republic may, of course, become a part 1 country, but even in the case of part 2 
 countries, we are concerned that there should be no possibility of sub-divisions, or of allowing requesting states to go on fishing expedition or pursuing trivial inquiries. 
 We will have other opportunities to consider de minimis provisions, which we will doubtless discuss in our debates on part 5. At this stage, I merely want to place on record the concerns of the Law Society of England and Wales and specialist extradition solicitors, which we share.

Alistair Carmichael: I generally concur with the views of the Law Society of England and Wales, as so ably expressed by the hon. Member for Surrey Heath (Mr. Hawkins). In particular, I can see no reason for the creation of two categories within category 2. My concerns stem from the point made by the hon. Member for Surrey Heath about fishing expeditions. During consideration of the Proceeds of Crime Bill, the Minister heard me make the point that wherever a power is made, the people who are given it will inevitably start to look for some way in which it can be abused. It is the proper function of Parliament to close down the options for abuse, but the proposal, with its distinction between evidence and information, is open to such abuse. There is no good reason for such a proposal in the first place, let alone one that almost invites fishing expeditions.
 The hon. Member for Surrey Heath expressed another concern that I share, which I would be grateful if the Minister would address. The Human Rights Act 1998 issues procedural safeguards that will not be so easy to monitor or enforce, particularly in part 2 proceedings, which relate to enforcement mechanisms. Will the Minister clarify the Government's expectations on monitoring and enforcement?

Bob Ainsworth: I would make a plea to get real on this issue and recognise that even the representations of an august body such as the Law Society of England and Wales cannot absolve us of the responsibility to consider treaty obligations and other longstanding arrangements, or of the need to consider in detail the workings of extradition procedures. These considerations may not be at the forefront of hon. Members' list of concerns, but they are important.
 Amendment No. 154 amounts to opposition for opposition's sake. The clause deals with the requirement to produce prima facie evidence in category 2 cases. Subsection (4) provides that a request from a country specified by Order in Council need be accompanied only by ''information'' rather than ''evidence''. The amendment would erase that with no further comment, and no justification is provided. 
 In this context we are talking not about European Union countries, so the hon. Member for Surrey Heath should not get so excited. Does he really believe that we are removing essential safeguards and denying people proper consideration in extradition cases? That is not true. 
 The subsection is designed to meet our existing obligations under the European convention on extradition, which was agreed by the Government—the hon. Gentleman supports it—and has operated for 12 years. The Conservative Government signed up to the ECE in 1990 and it was their introduction of the Criminal Justice Act 1988 and the Extradition Act 1999 that allowed prima facie requirements to be removed in the first place. Her Majesty's Opposition have some responsibility for bringing us to the present position, whereby such requirements were removed for those other than category 1 countries, so why are they suggesting that we should go back on that now? 
 The hon. Member for Surrey Heath asked why we insist on a certain set of regulations for Australia, but perhaps we are not. Australia is not party to the European convention on human rights and we have no intention of bringing the country into part 1 procedures. Is the hon. Gentleman seriously suggesting that we should enter into arrangements with countries that have a broadly similar criminal justice system to our own, in which we have a high degree of confidence, and remove the requirement for prima facie evidence? Has the Conservative party descended into that wholly inappropriate position? 
 We are talking about countries such as Switzerland, Canada and Australia, with which we have done considerable extradition business over time and for which sound judicial arrangements obtain. We deal with the Governments of those countries, whatever party is in power, so are we to enter into treaty arrangements with them on the basis of removing the requirement for prima facie evidence? What we are doing is common sense. The other provision concerns those countries for which we have already removed that requirement, which occurred when the Conservative party was in government. 
 Does the hon. Member for Orkney and Shetland really believe that we would allow category 2 countries to go on fishing expeditions? A proper judicial process would have to be followed. The application made would have to be stronger than that made for a part 1 case. I do not think that the hon. Gentleman seriously believes that the sort of countries to which I referred would be allowed to go on such fishing expeditions. I therefore wonder why he suggests that we rip up that convention and row back from it at a time when we are trying to encourage increased international judicial co-operation. He appears to be suggesting that we should say that although we have been party to that convention, which was negotiated a long time ago and has been in operation for the past 12 years, we intend to reimpose a prima facie requirement of evidence on those countries. Why should we do that at this stage? I do not see any justification for doing so.

Nick Hawkins: The Minister is protesting somewhat too much. He attacks me and, by implication, the hon. Member for Orkney and Shetland, for raising the point, and says that although the Law Society of England and Wales is an august body, that does not mean that we should try to row back on what the Government are doing.
 I take the contrary view. We are considering a wholesale change—this is not only consolidation but a major alteration of our extradition law. The Bill, in whatever form it finally reaches the statute book, will be the Act that sets out all the law on extradition for the foreseeable future, or until another Act is passed. If we have representations from external organisations saying that we should examine the issue of whether category 2 countries should be divided into two different types, and if such an august body—as the Minister put it—as the Law Society of England and Wales expresses concern about fishing expeditions, it is the purpose of Committees such as this to consider those matters. As my right hon. Friend the Member for West Dorset said on Second Reading, there will be issues that repay scrutiny. 
 We are considering part 2, and we are not as rushed as we were towards the end of this morning's proceedings. I was therefore surprised by the Minister's aggrieved tone, because the purpose of the Committee is to consider the serious concerns that we raised, which are shared with the professional bodies, and with the hon. Member for Orkney and Shetland on behalf of his party. The Minister should not, therefore, sound so aggrieved. 
 The debate has been helpful because the Minister has said, on the record, which countries will fall into the category. I am sure that the hon. Member for Orkney and Shetland would agree that that has moved the debate forward. That was not said on Second Reading. 
 It would be even more helpful if the Government were to produce a comprehensive list, because this afternoon the Minister was able to refer only to countries such as Canada, Switzerland and Australia. The debate has, however, been useful. I opened it in brief and moderate terms, and so I am surprised that the Minister was so aggrieved in his tone.

Bob Ainsworth: A list of countries might seem superficially attractive, but I would ask the hon. Gentleman to reflect further on that issue. The arrangements need to be considered and entered into bilaterally. Therefore, drawing up a list of the countries that we would and would not be prepared to consider would be quite a delicate thing to manage, and could also be a mistake, because it could might send the wrong signals to countries in either category.

Nick Hawkins: I am not sure whether the Minister is right about that. I am concerned that there should be proper parliamentary scrutiny of any Government's—not just this Government's—actions in this area. I am sure that the hon. Member for Orkney and Shetland shares my concerns. We want to ensure that arrangements such as this are made openly and clearly, and that the Government will be held to account for their actions.
 When I spoke about a list earlier, I did not suggest that the Government should draw up another list stating that certain countries would never be placed in another part 2 category. I said only that it would be helpful to have a list of which countries—only Switzerland, Canada, Australia or countries like them—are covered by part 2. I do not want to rule 
 out the inclusion of other countries, but our debate shows that it was right to voice concerns about two different tiers of part 2, as the Law Society of England and Wales put it. We exposed a real problem, and it was right to probe. 
 I hope that the Minister will not be so aggrieved when we raise other concerns about part 2. It is not good enough for him to harp on about what a previous Conservative Government did. This is new legislation on extradition, and it provides an opportunity to consider the issues afresh. I was not a Minister in the previous Conservative Government and I took no decisions. We need to reflect more seriously on the matter, but we have had a useful debate and I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 70 ordered to stand part of the Bill.

Clause 71 - Person arrested under section 70

Question proposed, That the clause stand part of the Bill.

Nick Hawkins: As the Committee can see, we tabled amendments Nos. 155 and 156, but they were not selected for debate. They match what we sought to achieve for the similar provision in part 1. The same protections that we argued for in the counterpart provisions of part 1 should apply to these provisions. I hope that it is appropriate to say that in general terms, without debating unselected amendments. The Minister should be aware that that reinforces our concerns about the need to protect people by showing them warrants in a language that they can understand.

Edward O'Hara: Order. It is not that the amendments have not been selected, but that they have already been debated.

Nick Hawkins: I was trying to check the previous list to establish whether we covered them. I must have been looking at an incomplete list.

Edward O'Hara: We debated them with amendment No. 50.

Nick Hawkins: I tried to check it before I stood up to speak, but I obviously did not look at the right piece of paper.

Edward O'Hara: It is not the most important of arguments between us.
 Question put and agreed to. 
 Clause 71 ordered to stand part of the Bill. 
 Clause 72 ordered to stand part of the Bill.

Clause 73 - Person arrested under a provisional warrant

Nick Hawkins: I beg to move amendment No. 159, in
clause 73, page 38, line 11, leave out '40' and insert '7'.
 The amendment relates to another concern of the Law Society with which we agree. It is designed to replace the period of 40 days with seven days, thereby reducing the routine time in which a person could be 
 remanded on a provisional warrant. The 40-day period is an unacceptably long blanket period for a person to be under suspicion. The Minister will doubtless tell us that it already happens under current arrangements, but a period of 28 days is more common in provisions dealing with remands. We all know that the courts often remand people for 28 days, 14 days or seven days. We believe that under the new system of provisional warrants, while waiting for a full arrest warrant, the remand period should be much shorter. We would be happier, as would the Law Society of England and Wales, if the Government were to change the 14 days to seven days or even to 28 days, and to provide the opportunity to apply for an extension of time in exceptional circumstances. 
 Before the Minister says so, we are not being silly or trivial, or trying to row back from the previous position. We feel strongly about this issue, as does the Law Society of England and Wales. Certain requesting states may be given longer without showing any exceptional circumstances relating to the request for extradition. 
 Whatever the current situation might be under extradition law, we are discussing provisional warrants and a new system of extradition law—the European arrest warrant is a totally new animal. The Government have introduced this Bill because of the European arrest warrant and the framework directive. The Bill will put all those new arrangements into force. This is therefore an opportunity to re-examine the situation and to see what is appropriate. The Law Society of England and Wales are right to say that the period should not be 40 days for a provisional warrant: that is too long.

Alistair Carmichael: I should say that while I am not in particular sympathy with the terms of the amendment, I agree with the general tenor of the speech made by the hon. Member for Surrey Heath. I would require some persuading that seven days is an appropriate blanket period: it seems to me that that is a tad on the short side, whereas a period of 40 days in those circumstances seems excessive. Will the Minister reconsider that point between now and Report?
 A compromise such as the hon. Member for Surrey Heath has suggested would be ideal. That would allow, for argument's sake, 14 or 20 days as the initial period with application to be made thereafter for extension on cause shown.

Bob Ainsworth: The limit specified in the Bill is 40 days, and that is the period that currently applies. As the hon. Member for Surrey Heath predicted, I would argue that the reason for the 40-day period is because that is what is specified in the European convention on extradition. At the risk of upsetting him yet again, that convention was passed and adopted by the UK in 1991 under the Conservative Government. However, as well as seeking to upset the hon. Gentleman again—I do not see anything the matter with that—I would also argue that it would cause us a problem if we sought to move away from that provision. The hon. Gentleman asked, quite reasonably, whether such a long period was necessary, but that period is generally specified in
 extradition treaties made during the last two centuries. It features in most of the UK's bilateral extradition treaties, and although the hon. Member for Surrey Heath said that there has been a change in his party's position on the issue, we are bound by the convention and by those treaties.
 While I am superficially attracted to the suggestion made by the hon. Member for Surrey Heath and supported by the hon. Member for Orkney and Shetland that the period could be reduced to 28 days, we would then be required to renegotiate all our extradition treaties and the convention itself. 
 We are not discussing the European arrest warrant, or any massive draconian measure. I note that the hon. Member for Surrey Heath has stopped using the word ''draconian''—I lost count of the number of times he used it, but he applied it to every clause in part 1. We are talking about part 2 arrangements and what is provided in the existing arrangements. We have a limited ability to move away from 40 days, unless we are prepared to do what has been suggested. 
 For the record, so that Members can decide whether to continue making representations that 40 days is too long, let me say that exceptions to the 40-day rule are allowed under current regulations only where our bilateral treaties or extradition agreements with other countries specify a longer period. Again, we have translated that into the Bill, as the only possible variation of the time frame is when an Order in Council specifically provides that a longer period is allowed in relation to the category 2 territory. 
 Forty days has proved appropriate for provisional arrest cases, and we see no reason why that should not continue. That period provides a suitable amount of time for the counsel to prepare the case, which would not be so if we cut it to seven days. If the position is thought through logically, there are good reasons why the period should not be changed. Provisional arrest is most likely to be used in urgent cases where there is a good reason why it has not been possible for a full request to be made. 
 The amendment would mean that everything—the full request, the paperwork and the evidence or, where appropriate if we drop the prima facie requirement for the particular country, the information—had to be prepared, translated and sent over in haste. That could be, and often is, a significant bundle of documentation. In addition, the papers would then have to be examined by the Secretary of State and, if he considered it appropriate, certified before being sent on to the judge. 
 It is not feasible to do all that, starting from scratch in the issuing state, in seven days. There would be no time to query any possible errors or omissions, although they would be all the more likely to occur if we forced countries to prepare their case in such a tight time frame. There would be no flexibility if, for example, the Secretary of State was temporarily unavailable, or the seven days happened to begin over the Christmas break. 
 I understand what the hon. Gentleman said, and I accept that, superficially, the period of time appears long. However, that is the current provision, and an awful lot of work needs to go into these cases. I do not think that there is evidence of undue delays leading to injustice—if people believe that there is, they may present it later—so we are replicating in the new legislation what has existed for some time and is enshrined in various treaties across the world, as well as in the relevant convention.

Nick Hawkins: I understand what the Minister says and I am grateful that he has been more serious about this issue. I am particularly grateful for his acknowledgement that, at first sight, 40 days seems a long time. I understand his point about treaty obligations; I am sure that none of us wishes to force this or any Government to tear up their treaty obligations.
 Unlike the Minister and his advisers, I have not studied individual treaties, and I am slightly surprised that they do not provide for flexibility or for 40 days to be a maximum. I wonder whether he might talk to his officials again, or whether it might still be possible, without tearing up all the treaties, to substitute a slightly shorter period of 28 days. The Minister acknowledged that, while advancing my case for seven days, I referred to 14 or 28 days as possible alternatives, as did the hon. Member for Orkney and Shetland. 
 I hope that the Minister will at least consider that point, because this is an opportunity to change extradition law if it needs changing, and to look afresh at some of the issues. Again, it was right of the Law Society of England and Wales to draw our attention to that point, because this may be the only opportunity for a decade or longer to reconsider what should happen in extradition cases. 
 If an arrest is under a provisional warrant, there should be some obligation on those who are putting the paperwork together to get a move on, in fairness to the potential subject of the extradition request and the lawyers representing him. The amendment tries to be fair to that person and to give his legal representatives an opportunity to prepare the case without unfairly hampering the interests of the state. There is balance to be struck. I am glad to see the Minister nodding in agreement. I hope that the Minister will reconsider this matter and will keep it under review, because the other place may need to discuss it. It is a point of detail, but not an insignificant one. 
 Having alerted the Minister to the concerns and having heard his reasonable response, I am happy not to pursue the matter at this stage. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Alistair Carmichael: I have a brief point to make, and I should be grateful if the Minister would take it away and consider it. It might equally be said to apply to clause 71. Subsection (3) states:
''The person must be brought as soon as practicable before the appropriate judge.''
 Subsection (4)(a) provides that that need not apply if 
''the person is granted bail by a constable following his arrest''.
 Subsection (11) says: 
''Subsection (4)(a) does not apply to Scotland.''
 That is perfectly proper, as in Scotland the police do not grant bail. I do not take issue with that. However, it seems that the police having the power to grant bail is a useful provision that gives a degree of flexibility. 
 Perhaps between now and Report the Minister and those advising him could give some consideration to the question of a parallel provision being put in for Scotland. I do not want to see terminology starting to be confused and constables in Scotland getting the power to grant bail, but under Scots criminal procedure there is a provision whereby police officers can arrest people on an undertaking to appear at a court at a later date. That is very close to what I understand police bail in England to be. In fact in Scotland it is often referred to in shorthand as police bail, but bail is something quite distinct and different. 
 Without that flexibility there can sometimes be logistical difficulties in taking people from, for example, the remoter parts of my constituency to the sheriff at Lothian borders sitting in Edinburgh. As soon as practicable can sometimes be a couple of days. There is good flexibility in the police being allowed to give bail. If some mechanism could be found to allow that to be extended north of the border, it would have a lot to commend it.

Bob Ainsworth: I shall take some advice and will come back to the hon. Gentleman as soon as I can.
 Question put and agreed to. 
 Clause 73 ordered to stand part of the Bill. 
 Clauses 74 to 82 ordered to stand part of the Bill.

Clause 83 - Case where person has not been convicted

Nick Hawkins: I beg to move amendment No. 160, in
clause 83, page 41, line 32, leave out subsection (3).

Edward O'Hara: With this it will be convenient to discuss the following:
 Amendment No. 161, in 
clause 83, page 41, line 32, leave out 'must' and insert 
 'may, where the statement is corroborated with independent evidence,'.

Nick Hawkins: I did not want to discuss this in a clause stand part debate, but it is interesting that we just agreed to clause 79 and the new rule against double jeopardy while the Government are proposing in other legislation in the House to change the rules about double jeopardy. I see that the Minister is shaking his head, but my right hon. Friend the Member for West Dorset teased his Front-Bench colleagues about that. There is something of a mismatch between the different criminal justice legislation before different Committees at different times.

Edward O'Hara: Order. I have been very generous, but the hon. Gentleman must move on.

Nick Hawkins: Indeed, Mr. O'Hara.
 It will not surprise the Minister or other Committee members to hear that the Law Society of England and Wales suggested amendments Nos. 160 and 161, which would leave out subsection (3) and replace the word ''must'' with ''may'' when the statement is corroborated with independent evidence. However, there is a slight difference, because as well as the Law Society, we have heard the strongly expressed concerns of Liberty. On subsection (2), Liberty said: 
''Category 2 countries still require the establishment of a prime facie case to be made out before extradition can occur. This requirement provides an important safeguard in the case of requests emanating from Category 2 countries, the majority of which are not signatories to the European Convention on Human Rights.''
 Indeed, many category 2 countries will have nothing to do with Europe or the European convention on human rights. 
 The Government's proposal to allow a summary of evidence to be read is, in the view of the Conservatives and Liberty, a serious inroad into the protections that have existed historically in our extradition law. Liberty believes that the requirement for a statement to be in full should not cause any significant delay to the extradition, and says that if a summary is incomplete and does not contain all the required information, it may work against the Government's aim by resulting in further delays. 
 The Law Society of England and Wales said that, unlike the provisions for the admissibility of statements elsewhere in the Bill, there is no safeguard in the provisions on who has to prepare such a summary. As always, there is a danger that a summary may be partial and tailored to support the extradition request, and may omit matters that may assist the defence. My experience during years of practising in criminal courts may provide me with some assistance in making my case. The Minister will know that in the criminal courts, if a prosecuting solicitor is aware of any fact that may not help his case, he is under a duty to make the information available to the defence and the court. That is why the prosecution in our courts traditionally represents the Queen and has a duty to the courts to ensure fairness in the consideration of the defence case. It has become apparent that many of the so-called miscarriage of justice cases arose from the prosecution having information that was not disclosed to the defence or the court. That is what has caused some of the most celebrated miscarriages of justices in which the convictions had to be overturned, sometimes many years later. 
 The Conservatives are bound to be concerned about introducing provisions for a summary, and the Minister will confirm that it is completely new. Such a provision has not previously been in extradition law, so for once I will not have the Minister attacking me by arguing that the Conservative Government in 1989 agreed to it. It is some relief not to have to face that attack from the Minister yet again. The Minister is having difficulty justifying the introduction of summaries. I believe that great concern will be expressed in the other place. We shall listen with 
 interest to what the Minister has to say, because for the first time in this part of the Bill we are dealing with a matter of some substance. I suspect that, as the Bill proceeds, we will have to spend more time on this issue than on any of the other issues that we have dealt with this afternoon.

Bob Ainsworth: The hon. Gentleman is absolutely right: I cannot throw that allegation at him. We are talking about cases where the requirement for prima facie evidence is being retained, and the clause provides for a summary of the person's statement to be admitted as evidence. Our proposed changes, which so worry the hon. Gentleman, would simply mean that a foreign police officer's account of what a witness had told him could be admitted as evidence. Without that provision, that evidence would be admissible only if the police officer came to the court in person to give it. Apart from the trouble and the expense that that would entail, a subtle but important consideration is that the task of the district judge is to determine whether there is a sufficient case against a person to warrant sending them to stand trial. In such prima facie cases, it is not the job of the judge to conduct the trial, or to establish the guilt of the fugitive beyond all reasonable doubt.
 Clause 83(3) is an important provision. It will make things much easier for most people involved in extradition, and it is important to stress that the district judge will always have discretion over the presentation of summaries of evidence. He can decide not to admit the evidence if he has any doubts about its authenticity or reliability. He can decide that the summary is not admissible, and that any evidence must be produced differently. We want to give the judge that discretion in order to make the arrangements more workable. It is an important safeguard, and it is the basis on which we seek to make the changes. 
 I am not surprised that the provision has caused concern. It is new, but I must say to Opposition Members that people who practise extradition have talked about it for some time. It gives the judge the discretion over the presentation of summaries of evidence, but does not say that evidence can be presented and will be accepted in a particular way. The amendment would deny the judge the ability to consider summaries of evidence. That is the current position, and if the Opposition are opposed to the district judge being allowed to give consideration to such summaries, they must stick to their current line. I wonder if, on reflection, they would be so opposed to that discretion and believe that it is such a threat to justice.

Kevin Hughes: That scares me a little.

Bob Ainsworth: That is terrible.

Kevin Hughes: That takes some doing, as my hon. Friend well knows. I see no point in having a summary of a statement. If I read the provision correctly, it means that I make a statement and someone else provides their interpretation in a summary, which a judge examines before taking a decision. If someone else writes a summary, it is their opinion of what I
 said, but I want the judge to see exactly what I said rather than what someone else thinks I said. I ask the Minister to reflect further on the problem.

Bob Ainsworth: If I frighten my hon. Friend, I am very worried indeed, as I have heard him express views on all policy areas and fear is not usually apparent. In a case such as he describes, does not my hon. Friend have any faith in the judge's ability to decide that a summary is inappropriate and an improper reflection of the evidence supplied? We want evidence to be heard first hand, but that may not be possible, and the proposals enable it still to be heard.
 At the other end of the spectrum, does my hon. Friend accept that, although the judge may feel comfortable about accepting police reports as evidence, he cannot do so currently? Individual police officers need to travel from jurisdictions abroad to provide the evidence and the judge has no discretion to decide when he is comfortable that the evidence is authentic and delivered properly. My hon. Friend would accept that the provision amounts to a boon in time saving and money saving, but no one wants to open the door to potential injustices. That is what my hon. Friend is frightened of, but in the light of the many conversations with him over the years, I am surprised that he has not been more frightened about other issues in the Bill.

Kevin Hughes: My hon. Friend is right. I am generally in favour of the thrust of the Bill in respect of time saving and efficiency, but how can a judge take a decision about whether a summary is fair if he does not possess the original statement, and if he has the original statement, what is the point of the summary? I cannot get my head around that.

Bob Ainsworth: The judge must be satisfied that the evidence that he is using to take a decision is bona fide, authentic and appropriate. If he is not satisfied, he has unhindered discretion not to allow it as evidence. It is a matter for the judge. Should we restrict his discretion and say that hearsay evidence cannot be accepted in any circumstances because it makes us feel dreadfully uncomfortable, or should we allow the judge to hear the evidence in certain circumstances? That is the question that members of the Committee must decide.

Nick Hawkins: As so often in the past, I echo the common sense of the hon. Member for Doncaster, North (Mr. Hughes). If we allow summaries in this new legislation, the danger is they will tend to become the norm. Without the foreign policeman in front of him, the judge cannot analyse whether the summary is fair. If the person's full original statement is available, there is no need for a summary. The hon. Member for Doncaster, North is right; he made an unanswerable point.

Bob Ainsworth: A a district judge at Bow street magistrates court is bound to develop a method of operation to deal with part 2 countries in these cases. Is the hon. Gentleman really saying that he does not have confidence that a judge is capable of deciding what should be admitted as evidence, that he cannot be trusted in that respect and that there must be a bar on hearsay evidence and summaries of evidence being considered in prima facie cases? If that is not what the
 hon. Gentleman is saying I ask him to intervene and put me right. I can understand that he wants to stay with the current, pure position: that whatever the jurisdiction, no matter how far away it might be, such as the northern territories of Canada, unless someone is prepared to turn up and give evidence in person, that evidence cannot be admitted in a prima facie hearing in London. If that is what the hon. Gentleman wants he can stick to the amendment, but if he wants to give the judge some discretion about what is acceptable, he should agree to the Bill as drafted.
 There is some anxiety about the matter, but I hope we will have an open discussion so that people can see where we are coming from and the consequences of the measure. I ask the hon. Gentleman not to press the amendment at this stage. I shall continue to reflect on what has been said in the debate, and I shall be prepared to field questions further down the line. I hope that members of the Committee will reflect on the logistical problems that may arise in some circumstances. The Bill enables us to tackle some of those problems and to have faith in the judge's ability to decide what he can and cannot do without putting the principles of justice at risk.

Alistair Carmichael: I share the concerns of the hon. Member for Bolton, North—[Interruption.] I apologise, I should have said Doncaster, North. It is all England to me. I hope that my wife, who has roots in Lancashire, does not get to hear about that exchange.
 I share the concerns of the hon. Gentleman, wherever he comes from, about the use of summaries. As I listened to him, I was taken back to my time as a prosecutor. We obtained police précis reports in the first instance in deciding whether to prosecute. Presuming that it had been decided to take proceedings, the next stage was to order full statements if there was to be a trial. Once we had the full statements, we often wondered who had written the précis report and what connection there was between it and the full statements. The hon. Gentleman makes a good point. 
 I am worried about what the Minister said about discretion. Even in the Bill as drafted—I appreciate that the removal of subsection (3) would be significant—the judge is not given a great deal of discretion. Regardless of whether amendment No. 160 is accepted, amendment No. 161, tabled by the hon. Member for Surrey Heath, would change ''must'' to ''may'', with the rider: 
''where the statement is corroborated with independent evidence''.
 That would provide the appropriate discretion. I hope that when he considers the matter before Report stage he will contemplate that provision.

Nick Hawkins: This has been a more substantive debate. The intervention of the hon. Member for Doncaster, North was welcome. I do not know whether he remembers sharing a cab with me not long after Labour's victory in the 1997 general election. He explained the difficulty he was having as a Government Whip with some of the 1997 intake of Labour MPs over the importance of voting in the
 Division Lobby rather than electronically. I do not think I am breaking any confidences in saying this, because he argued openly for the tradition of going through the Lobby. He said to MPs of the 1997 intake, ''If you don't go through the Lobby, you'll never get the chance to badger a Minister''. Now that he has returned to the Back Benches after distinguished service as a Government Whip he is taking the opportunity to badger the Minister in a different way, not in the Division Lobby but in Committee.

Edward O'Hara: Order. That was long enough. I shall let Mr. Ainsworth speak.

Bob Ainsworth: I was going to say that a conversation between a London cabby, my hon. Friend the Member for Doncaster, North and the hon. Member for Surrey Heath must have been a very liberal discussion.

Edward O'Hara: Order. I remind hon. Members that we are discussing amendment No. 160.

Nick Hawkins: With regard to Government Back Benchers taking the opportunity to badger Ministers on such important civil liberties issues—this has some relevance to the debate, Mr. O'Hara—it occurred to me that at that time the hon. Member for Doncaster, North had a colleague in the Whips Office, and I am sure that many liberal conversations took place between them. They would not have been so constrained as they are now. The Minister was certainly not so constrained in his views when he was a Whip.
 The hon. Member for Doncaster, North made an important point that reinforces our concern. The Minister has had to accept that the Government are proposing a major change to the present arrangements. We feel that, even if a policeman has to come from the northern territories of Canada, he should come for the reason given by the hon. Member for Orkney and Shetland, whose experience in the courts in Scotland reflects my experience prosecuting in the courts of England. If one saw a case note from what were county prosecuting solicitors in the late 1970s and early 1980s—it later became the Crown Prosecution Service—which was supposed to be a summary of the case, and then called to see the full witness statements, the difference between the two could be enormous. I am afraid that that could easily happen under this provision. 
 It is not that we do not trust judges to use their discretion, and we are not saying that there should be a bar. The Minister has to justify what he is doing, because he and the Government are making the change. I accept the Minister's good faith when he says that he will reconsider the matter. I certainly accept what the hon. Member for Orkney and Shetland says in drawing the Minister's attention to our unselected amendment that would reintroduce an element of discretion. However, because we feel so strongly about the matter, because of the points made by the hon. Member for Doncaster, North and the views of Liberty and the Law Society for England and Wales, we must put it to a vote.

Kevin Hughes: As the hon. Gentleman has decided to put the matter to a vote, I shall say for the record that I will support my hon. Friend the Minister despite my reservations, because he has given the Committee a guarantee that he will consider the matter seriously as the Bill travels through its parliamentary process.

Edward O'Hara: I am not allowed to impose summary proceedings on this debate.
 Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 8.Question accordingly negatived. 
 Clause 83 ordered to stand part of the Bill. 
 Clauses 84 to 122 ordered to stand part of the Bill.

Clause 123 - Consent to extradition: general

Question proposed, That the clause stand part of the Bill.

Nick Hawkins: I wish to have a brief clause stand part debate, because the Law Society had the same concerns about situations in which there is consent to extradition. We have already debated the issues related to that.
 The Law Society believes that the person who may be extradited should have the opportunity to have independent legal advice and to revoke that consent. We have already debated that matter, but having reached this point in the Bill, and given that the issue is dealt with separately in part 2, we should mention it so that the concern is not lost. The point about the need for independent legal advice applies equally to the situation before someone consents to extradition. Extradition is a dramatic step, and people need to ensure that they have had the benefit of independent legal advice before they are extradited. I therefore hope that it is not wasting the Committee's time to flag up that issue in our debate on part 2, as we did in our debate on part 1.

Edward O'Hara: A reminder of cross-references is in order, but not a full debate.
 Question put and agreed to. 
 Clause 123 ordered to stand part of the Bill. 
 Clauses 124 and 125 ordered to stand part of the Bill.

Clause 126 - Consent to other offences being dealt with

Nick Hawkins: I beg to move amendment No. 163, in
clause 126, page 62, line 14, leave out '91' and insert 
 '78, 91, 92 and 93'.
 The amendment is brief. It adds extra clauses that the Secretary of State must consider. Subsection (5) currently provides that the Secretary of State must consider only clause 91. The Law Society of England and Wales supports our belief that the provisions under clauses 78, 92 and 93, as well as 91, should be included to ensure that the Secretary of State should consider all the possible bars to extradition. I am sure that the Minister's officials will have advised him of the reasons why the Secretary of State's consideration should be restricted to the bar in clause 91 relating to the death penalty. 
 Who, if not the Secretary of State, will consider the other bars to extradition? It seems to the Opposition and to the Law Society of England and Wales that Parliament can scrutinise this new extradition legislation only by the Secretary of State exercising his powers. He is accountable to Parliament and through Parliament to the citizens of his country. He should surely consider all the possible bars to extradition before he takes that decision. 
 We will listen with interest to what the Minister has to say. There may be a good reason why the Bill does not include these clauses. It would be much clearer if the Secretary of State considered all the bars to extradition. If he does, the Bill should include them.

Michael Wills: My moment arrives. I do not know whether it is too late to welcome you to the Chair, Mr. O'Hara, but may I do so if it is not?
 I am grateful to the hon. Member for Surrey Heath for raising that point. I understand that he wants greater clarity, which I am happy to give. When we send someone to a category 1 territory that then seeks permission to charge him or her with an offence other than the one for which he or she was extradited, clause 52 requires the district judge to consider all the bars to extradition to see whether any of them apply to the additional offence. By contrast, under clause 126, the Secretary of State is obliged to consider only whether the crime is an extradition offence and if there are death penalty considerations. He or she is not required to consider all the other bars to extradition. 
 The nub of the hon. Gentleman's amendment concerns the difference. The answer is simple. If hon. Members care to read clause 52(6), they will see that in part 1, where none of the bars apply, the district judge must give his or her consent to the specialty waiver. By contrast, clause 126(7) provides that the Secretary of State may give his or her consent in non-death penalty cases. In other words, consent is currently entirely discretionary. The Secretary of State is never obliged to give consent and would withhold it if there were good grounds for believing that it would be unjust to give it. He or she could also take into account any representations that the fugitive, or his or her legal representatives, might care to submit. 
 I shall spell out more clearly the safeguards that are implied. First, as the Committee will be well aware, most part 2 countries—indeed, all those that are not in the Council of Europe—have to supply prima facie 
 evidence to accompany their extradition requests. That can apply equally in cases involving a request to prosecute for additional offences. Secondly and crucially, any decision taken by a Minister in this context is judicially reviewable. A Minister who took a manifestly unreasonable decision could expect to lose a judicial review. Those circumstances would clearly apply if the Minister failed to consider any of the bars to extradition. 
 I hope that the hon. Gentleman has received enough comfort from my clarification of what is intended in the clause to feel able to withdraw his amendment.

Nick Hawkins: I am grateful to the Minister and welcome him to the Committee. It has been a brief appearance, but a helpful one.
 The Minister has set out the reasons why the Secretary of State has a wider discretion. I understand entirely what he says, and the contrast that he has drawn between the mandatory nature of what a district judge has to do under clause 52 in relation to part 1 countries, and the provision relating to the Secretary of State, which uses the word ''may'', provides residual discretion, and involves decisions that are judicially reviewable. 
 Nevertheless, I hope that the Minister will at least keep the matter under review, and consider whether, in addition to the word ''may'' in clause 126(7), it might in future be helpful, for the sake of clarity, for all the bars to be listed. I did not hear him argue that it would be entirely wrong or inappropriate to insert references to clauses 78, 92 and 93. He is simply saying that we do not need to, but I think that that would provide helpful clarification, because even though the word ''may'' is in clause 126(7), it makes it look as if the Secretary of State considers only one bar. I do not think that it would damage the legislation to make it clearer that he uses his discretion to consider all the bars. If the death penalty issue is raised in clause 91, why not also include clauses 78, 92 and 93? 
 The Minister seems to be saying that the Secretary of State has to consider those points anyway—that he has to exercise his discretion and consider the whole prima facie case. I therefore hope that the Minister will keep that under review and perhaps consider tabling a Government amendment at a later stage just to make the position clearer. At this stage, however, having probed the Minister and heard his reassurances, which could be considered by a court in future under the rule in Pepper v. Hart, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 126 ordered to stand part of the Bill. 
 Clauses 127 to 140 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Derek Twigg.] 
 Adjourned accordingly at twelve minutes to Four o'clock till Thursday 16 January at twenty-five minutes past Nine o'clock.